Top city officials aid family in zoning bind

A politically connected Dorchester family is getting help from the highest levels of City Hall to save a newly constructed house that two courts have ordered destroyed because it violates Boston's zoning code.

Though Suffolk Superior Court and the Massachusetts Appeals Court have sided with angry neighbors and ordered removal of the house built by Jackie and Anthony O'Flaherty, officials including Boston Redevelopment Authority director Mark Maloney and Mayor Thomas M. Menino have intervened on the family's behalf.

The BRA asked a high-powered Boston zoning lawyer to represent the family. The lawyer, Martin R. Healy of Goodwin Procter, is chairman of the firm's real estate development and permitting practice and is listed in The Best Lawyers in America 2005-2006, according to his resume. He is working for the family for free.

Menino recently ''made clear his commitment to resolving" the matter, according to a March 30 e-mail by a BRA lawyer, and the BRA is now trying to amend the zoning code so that the house would no longer violate the rules. This week Maloney contacted a lawyer representing the neighbors in an effort to broker a compromise with neighbors.

The O'Flahertys are a longtime Boston family, with several generations living in Dorchester since the 1920s. Jackie O'Flaherty's aunt is Susan Tracy, a popular former state representative who worked for the administration of former mayor Raymond L. Flynn and currently sits on a committee of women supporting Menino's reelection bid. Tracy is friendly with several of Menino's top aides and has been active in the family's efforts to save the house.

Menino and other city officials said they are trying to correct an injustice and not doing anything for the O'Flahertys that they wouldn't do for others.

''This is a working family that made a mistake, and if someone wants them to tear down the house, it's totally wrong," said Menino, adding that he hadn't met the O'Flahertys until recently. ''These are hard-working people who thought they were doing the right thing. They got bad advice, so they turned to government. We're trying to be helpful."

Controversy over the 2,000-square-foot house on Melville Avenue began even before it was built in 2001 because some neighbors didn't want another house built on the lot. The lot didn't meet the zoning code's requirement for 50 feet of frontage on a public street. The O'Flahertys went to the city's Zoning Board of Appeal for permission to build. At the time, the O'Flaherty's were living in a two-family house on the property.

Several neighbors turned out to object, but, they said, weren't allowed to speak. Construction of a new house would result in three structures on the lot, including the two-family house and a barn at the rear. But the total number of buildings was not an issue before the Zoning Board.

The Zoning Board issued the variance, and two weeks later the neighbors sued, arguing that squeezing the house onto a lot with such small frontage meant that the new building would block their view and access to light and air. They also argued that the house would increase traffic and congestion in the neighborhood.

A Suffolk Superior Court judge refused to issue an injunction to stop construction, but warned the family that they ''proceeded with the construction at their own peril." The family's lawyer assured the judge that if the family lost the case they would tear down the house.

They built the house, now valued by city assessors at $407,400, and moved in 2002. The following year, Superior Court Judge Janet Sanders ruled against them, ordering the Zoning Board to deny the variance and take ''all action necessary against the O'Flahertys to enforce the provisions of the code, including an order that they remove" the house.

In January, the state Appeals Court upheld Sanders's decision.

''This happened because of the process," said Yvonne Ruggles, one of the neighbors who sued. ''It was our understanding that as abutters we had the right to question the development. But when we went to the Zoning Board they didn't ask for the abutters. The lot was too small."

The battle over the house has galvanized the community, and hundreds of people turned out Monday night to speak for or against the city's proposed solution to the problem: changing the zoning code to circumvent the court decisions by ensuring that the lot complies with zoning rules.

Some residents worried that the amendment, which will make it easier for property owners to build without first going to the Zoning Board of Appeal for special approvals on lots that have smaller frontage, would have broad implications for neighborhoods across the city. They said it could make it easier for builders to squeeze projects onto tiny lots.

Under the proposed change, a property owner could be issued a building permit for a lot without having to go before the Zoning Board of Appeal as long as the frontage on a lot is at least 75 percent of the frontage specified in the zoning code.

Some Boston neighborhoods already have exceptions that allow building on properties that are 75 percent of the square footage spelled out in the zoning code and 75 percent of the width. But lots must still meet frontage requirements. The O'Flahertys' lot is just over 45 feet at the street, less than 5 feet shorter than currently required.

City officials said that they are not looking to change the zoning code simply to benefit the O'Flahertys, but that the family's ordeal has brought to light a problem in the code that needs ''clarifying." The city plans meetings in the affected neighborhoods before moving forward with passage of the zoning change.

Councilor at Large Maura Hennigan, who is running for mayor, said she has never seen the city bureaucracy organize so publicly on behalf of a single family.

''I've never seen such a blatant example of putting a personal relationship ahead of what should be an objective process," said Hennigan, who opposes the zoning code change. ''We can't have a city that sets its laws based on personal interests and friends."

Some Dorchester residents also said there is another dimension to the battle, reflecting tensions between lifelong working-class residents like the O'Flahertys and newcomers trying to curb development in a modest city block. Some testified on behalf of the O'Flahertys, saying that residents need to bridge that divide.

''Neighbors help each other and care about each other," Carolyn Kain, a neighborhood resident, said at Monday night's meeting.

The O'Flahertys say their lives have been made miserable by the controversy and fear a wrecking ball will demolish their home.

''We just wanted to have enough room for our family," said Jackie O'Flaherty. ''Our kids were sharing a bedroom, and we needed more space. It was always our dream to build on the lot.

''This has destroyed my family," she said. ''My 10-year-old daughter is crying over this all the time. It started off they wanted the power in the neighborhoods and it turned into an angry mob that would do anything and everything to hurt us. I can't fathom why they've taken it to the extremes they've taken it."